GEORGE MAGANGA

IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA ATSHINYANGA CRIMINAL APPEAL NO. 140 OF 2023 (Original Criminal Case No. 141 of 2023, before District Court of Shinyanga at Shinyanga) GEORGE MAGANGA ………………………………………...APPELLANT VERSUS THE REPUBLIC ……………………………………………RESPONDENT JUDGMENT 27th March, & 19th April, 2024 MASSAM, J. The appellant, before the District Court of Shinyanga at Shinyanga in Criminal Case No. 141 of 2023was charged and convicted with the charge of rape Contrary to Section 130(1)(2)(e) and 131(1) of the Penal Code Cap 16 R: E 2022. The particulars of the offence as per the charge sheet were as such that, on the dates between September 2022, to July 2023, at Matanda area village within Shinyanga District in Shinyanga Region, the appellant had carnal knowledge with a girl aged 13 years old. 1 Brief facts of the case are to the effect that, the victim is residing at Matanda with her grandmother while the accused is the nephew of the victim. On the 11/07/2023, the mother of the victim suspected that, the accused is having sexual intercourse with the victim the facts which was also admitted by the victim. Thereafter the accused was arrested and taken to the police station for interrogation while the victim was issued with PF3 for medical examination. After being examined she was found with no injury, bruises, no hymen and the absence of it shows that she was penetrated. The matter was taken to the court and when the charge was read over to him the accused denied to have committed this offence. After the full trial, the prosecution managed to prove the charge against the appellant, and subsequently, the accused person was convicted and sentenced to serve 30 years imprisonment without fine. Aggrieved therein, the appellant rightly lodged this appeal with 5 (five) grounds of appeal that, 1. That, the learned trial Magistrate erred in law and in fact when he found the evidence of the prosecution witnesses corroborative although the doctor proved before the court of law that, there was no any bad done to the victim hence the victim is clean and in her private part there was no any problem. 2 2. That, the learned trial Magistrate erred in law and in fact to convict the appellant on contradictory evidence of PW1, PW2 and PW3 about the age of the victim. 3. That the trial Magistrate failed to judiciously evaluate the evidence and come to a wrong decision, 4. That, the sentence of 30 (thirty) years imprisonment was harsh and excessive in the circumstances of the alleged offence. 5. That, the learned trial Magistrate erred in law and in fact when relied on the evidence tendered by the prosecution side which did not prove the alleged offence beyond reasonable doubt. The appellant therefore prays to this court for this appeal be allowed, quash the conviction, set aside the sentence and the appellant be acquitted. When the matter was called for hearing, it was argued orally whereas the appellant appeared in person, unrepresented while the respondent was represented by Ms. Mboneke learned State Attorney. Arguing in support of his grounds of appeal, the appellant had nothing useful to submit than praying this court to consider his appeal and left him free to continue with his daily activities. 3 On her reply, the learned state attorney submitted that, she is not supporting the appellant’s appeal but the sentence and conviction by trial court as the case was proved beyond reasonable doubt. With regards to the grounds which submitted by the appellant, she chooses to merge grounds number 1,3,4 and 5 while ground number 2 was argued separately. She commenced by arguing that, the appellant was charged and convicted for the offence of rape contrary to Section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap 16 R: E 2022 thus consent of the victim is immaterial but what was required to be proved were age, penetration, and who raped the victim. In regard to the issue of age, she submitted that, according to the decided cases the age of the victim can be proved by a mother, relatives, guardians, doctor or the victim herself/himself. Coming to the present case the mother of the victim was the one who proved victim age who pointed out to have 14 years as she was born on 7/1/2009 the facts which was found on Page 10 of the court proceedings, Again at Page 4 the victim herself testified to have 14 years and the appellant did not question about the age of the victim. In regard to the issue of penetration and who raped the victim, she submitted that, the victim testified at page 4 of court proceedings to have a relationship with the accused and they used to have sexual intercourse 4 several times and the last time was in 2023, hence the victim managed to prove that, they started to have sexual intercourse in the year 2022. Again, that evidence was corroborated by the evidence of Pw2, the doctor, at Page 8 who revealed in his report that, the victim was found with no hymen and was penetrated with blunt object even though she was found with no bruises no complain of any pain. Further, to that she submitted that, Pw5 tendered a caution statement of the appellant which shows that, he admitted to have committed this offence and yet he did not cross examine to object the caution statement. Once more, the evidence at Page 10 which was testified by the mother of the victim discloses that, she was the one who visited at the house of the accused and found them seated in same coach closely and romantic. Additionally, she added that, after the mother of the victim went to school, she was informed by Pw4 about the relationship between the victim and the accused Pw4 told her that after hearing that information she called the victim and interrogated her and, she confessed it. Supporting his argument, she refers this court at Page 13-14 of the court proceedings, where Pw4 the displine teacher informed this court that when she was testifying to the court about victims confession of having that relationship with her uncle the appellant did not ask any question to object the 5 tendered exhibits, so the appellant’s failure to cross examine that witness meant that he admitted that facts as it was held in the case of Issa Hassan Uki Versus Republic, Criminal Appeal No. 129 of 2017, CAT at Mtwara, Pg No. 16,and the case of Damian Ruhele Versus The Republic, Criminal Appeal No. 501 of 2007, CAT at Mtwara. Lastly she said that in their side they managed to prove all the ingredients of rape to the required standard. Submitting on the second ground of appeal, she said that, the evidence testified by all prosecution witnesses were the same and not contradictory as complained by the appellant. Also the appellant did not cross examine the said witnesses. In rejoinder the appellant insisted to be left free. Having heard the submissions from both parties, I will now make a determination on the merit of this appeal, and the issue before this court for determination is whether this offence has been proved beyond reasonable doubt. To commence in urging this appeal this court found that it is well stated under Section 3 (2) (a) of The Evidence Act that, "A fact is said to be proved when - (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists;'' 6 Again, Section 110 (1) provides that, "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” To start with, this court will direct its mind at sections 130 (1) (2) (e) which provides for the basic components of the offence of rape. For clarification, Section 130 (1) provides that "it is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances failing under any of the following descriptions: - (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man." Consequently, for the offence of rape to be established, first, male penis should penetrate to a girl reproductive organ, and that act should be properly proved, second, if a girl was below the age of 18 years, it is immaterial whether the girl gave consent or otherwise. If a woman was above the age of majority, that is, above 18 years old, then such penetrations should be without her consent to constitute the offence of rape. 7 With the first sets of grounds that is ground 1, 3,4 and 5, it was from the appellant that, the prosecution did not prove the age, penetration and if it was the appellant who raped the victim. To start with the issue of age, the prosecution was bound to prove that the victim was below the age of 18 years when the alleged offence was committed as age in statutory rape is fundamental element, and must be proved beyond reasonable doubt as it also goes to the root of the case of rape and determine the whole issue of sentence. Subsequently, the law positioned the age of the victim as compulsory for the whole offence of rape. It is therefore a question whether the age of the victim was properly proved as required by the law? The case of Isaya Renatus V. R. Criminal Appeal No. 54 of 2015, who in law can prove the age of the victim, it was held that “the age of the victim can be proved by either parent, relative, medical practitioner or birth certificate if available” Also this position was clearly debated in the case of Festo Lucas @Baba Faraja@ Baba Kulwa V.R, Criminal Appeal No. 27 of 2022, that, “The proof of age must be concrete, viable and reliable, General statement cannot be accepted at this era of statutory rape.” In our present case and as per the evidence of PW1, the victim at Pg. 4 pointed out to have 14 years, and her mother to wit, Pw3 at Pg. 10 8 testified that, the girl is 14 years as she was born on 7/11/2009. Since those two witnesses proved that the victim was 14 years old as per the requirement of the above cases, this court is of the view that, the age of the victim was properly proved by the prosecution as there were specific date ,month and year mentioned by people who are required to prove the age of the victim since the evidence tendered by itself support each other and there were no discrepancies. Likewise, it is important to prove penetration, it was from the prosecution that, penetration was proved properly since the victim admitted that, she was in a relationship with the appellant. It is clear from the case of Mathayo Ngalya @ Shabani V Republic, Criminal Appeal No. 170 of 2006 (unreported), that, "The essence of the offence of rape is penetration of the male organ into the vagina. Sub-section (a) of section 130 (4) of the Penal Code ... provides; - 'for the purpose of proving the offence of rape, penetration, however slight is sufficient to constitute the sexual intercourse necessary to the offence.' The court observed that; For the offence of rape, it is of utmost importance to lead evidence of penetration and not simply to give a general statement alleging that rape was committed without 9 elaborating what actually took place. It is the duty of the prosecution and the court to ensure that the witness gives the relevant evidence which proves the offence". From the above citation, this court properly reviewed the evidence adduced by the Prosecution at the trial court preferably at Pg 4, 7 and 10 and noted that, the victim testified to have been penetrated by the appellant since 2022 and she used to have sexual intercourse with the accused. PW2, the Doctor at Pg 8 pointed out that, ’’……. General examination showed that she was clean and no problem no injury, in her private parts there was no any injury, bruises or complains of pains, however she had no hymen…...’’ From the above piece of evidence this court is questioning as to what time the victim was penetrated. This is due to the facts that, does the absence of hymen a proof of penetration, and that it was caused by a sexual act? This court is aware that absence of hymen can be caused by other factors, like doing hard works, driving motorbikes and some of the women are born without hymen, hence the prosecution was bound to prove more that, the absence of the victim’s hymen was caused by penetration. 10 Even though, this court is aware with the principle in the case of Selemani Makumba v. Republic, [2006] T.L.R 379,thatthe best evidence in rape cases comes from the victim but this court is of the view that, the so-called best evidence shall qualify to be the best only if, it has been accurately collaborated to establish the offence of rape and it is also depends on the circumstance of each case, hence, the prosecution failed to prove as to whether the absence of hymen in the victim’s vaginal was due to penetration. And this court find out that the prosecution failed to prove when the said victim was penetrated as the finding of doctor shows that victim was clean and she had no problem, also he added that she had no bruises no injury but she had no hymen. Again the doctor stated that victim was normal and had no complains of pain, all findings make this court to find out that prosecution was required to go further on that to proof if the absence of hymen was the only reason to proof penetration and if that penetration was there when does the same happened. With the third ingredient as to whether it was the accused person who raped the victim, this court is of the view that, since penetration was not properly proved hence there is no need of discussing the issue of identification as it will be useless. 11 With the 2nd ground of appeal that, the evidence tendered by the prosecution was contradictory, with the above analysis, this court is of the settled mind that since two ingredients were not properly proved to wit, the issue of penetration and identification, I may accept that, there was contradiction on the evidence tendered and add more doubt to prosecution evidence as the offence was not properly proved to the required standard. Moreover, the appellant complained that, the sentence imposed to him was too excessive in the circumstance of the alleged offence. The provision of section 131. -(1) provides that, ” Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with a fine, and shall in addition be ordered to pay compensation of an amount determined by the court, to the person in respect of whom the offence was committed for the injuries caused to such person. Thus, from the above provisions, what was imposed by the trial magistrate was in accordance to the law and the proviso binds the court to 12 minimize the sentence subsequently the punishment is a statutory verdict and the court has no discretion to decide it in other way. That in anyhow, as per discussion in accurate issue that the evidence tendered was insufficient to mount conviction as charged, this court find this appeal to have been brought with sufficient cause, and it is hereby partly allowed by quashing the conviction and judgment and also set aside sentence of 30 years imprisonment. Accused be released immediately from prison unless he is otherwise lawfully held. Right of appeal explained. It is ordered. DATED at SHINYANGA this 19th day of April, 2024. R.B. Massam JUDGE 19/04/2024 13